Hawkins v. Nowland
| Decision Date | 31 August 1873 |
| Citation | 53 Mo. 328 |
| Parties | C. C. HAWKINS, Defendant in Error, v. WILLIAM NOWLAND, Plaintiff in Error. |
| Court | Missouri Supreme Court |
In this case it appears that the money received by defendant was less than the amount of the mortgage debt.
Error to Buchanan Circuit Court.
Ben. Loan, for Plaintiff in Error.
I. The judgment rendered is substantially a judgment against the plaintiff, Hawkins, and the judgment for costs should have followed the judgment upon the merits, and been in favor of defendant, Nowland, against Hawkins. (1 W. S. 343, § 6.)
Vineyard & Young, and M. A. Reed, for Defendant in Error.
I. Defendant admits his liability for the amount he received, and which he had not credited on the note held by him. The well known rule upon this point is, that in actions against trustees, they will always be charged with costs where they have been guilty of misconduct in the execution of their trust. (Hill Trust, (4 Am. Ed.,) side p. 558.)
This was an action in the nature of a bill in equity.
The petition charges, that the plaintiff mortgaged a tract of land to the defendant, to secure a debt; that the mortgage contained a power of sale, and that the defendant under this power, with a view to cheat and swindle the plaintiff, sold the property and had it bought in at a reduced price by an agent, for his benefit, and afterwards took a conveyance from the agent and resold the property at a greatly reduced price to an innocent purchaser. The petition then asks, that the defendant be compelled to account for, and pay to the plaintiff, the value of the property, and the rents and profits, after deducting the debt due from the plaintiff to the defendant.
The court upon a final hearing of the cause made a decree, that the defendant should account for the amount he sold the property for, and for the rents during the time he held it, and as the debt of the plaintiff was still unpaid, the decree directed that the amount should be entered as a credit on the debt due by the plaintiff to the defendant, and the court adjudged the costs against the defendant.
The defendant has brought the case here by writ of error. He filed no exceptions in the Circuit Court, and upon the naked record asks a reversal of the judgment, as to the costs.
The plaintiff recovered a judgment, not for what he claimed, but still the judgment was in his favor, requiring a credit to be entered by the defendant which had not been previously allowed....
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Friends of Frame Park, U.A. v. City of Waukesha
...concluded that the plaintiff was a "prevailing party," although the favorable judgment he recovered was not "what he claimed[.]" 53 Mo. 328, 330 (1873).• In Henry v. Miller, the Maine Supreme Court concluded a creditor was a "prevailing party" even though he obtained a judgment for less tha......
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Turner v. Johnson
...As a general rule, where the plaintiff is the prevailing party in a suit in equity, he should recover costs. It was so held in Hawkins v. Nowland, 53 Mo. 328, but without consideration of the history of these statutes. Where, however, substantial issues are found for one party and like issu......
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Friends of Frame Park v. City of Waukesha
...concluded that the plaintiff was a "prevailing party," although the favorable judgment he recovered was not "what he claimed[.]" 53 Mo. 328, 330 (1873). • In Henry v. Miller, the Maine Supreme Court a creditor was a "prevailing party" even though he obtained a judgment for less than he soug......
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Brewster v. Terry
... ... wrongfully and fraudulently deprived him of his property and ... concealed his conduct by false statements. Hawkins v ... Nowland, 53 Mo. 328; Turner v. Johnson, 95 Mo. 431 ... Hennings, ... Green, Henry & Evans for respondent ... ...